Henri Krishna takes a look at the relationship, both real and imagined, between the child element in universal credit and child benefit
Entitlement to child elements in universal credit (UC) is dependent on being ‘responsible’ for a child or qualifying young person (henceforth in this article, references to a ‘child’ also include references to a qualifying young person). However, CPAG has heard from various advisers that the DWP is linking it to entitlement to child benefit. This is resulting to erroneous refusals, delays andawards of UC child elements.
Regulations 24 and 33 of the Universal Credit Regulations 2013 make entitlement to child elements in UC dependent on being ‘responsible’ for a child. Regulation 4 defines when a claimant is treated as responsible for a child. This is when s/he ‘normally lives’ with the claimant(s) (where there is shared care, there are further considerations regarding who has ‘main responsibility’ for the child).
‘Normally lives’ is not defined in the regulations. But in MC v Secretary of State for Work and Pensions (UC)  UKUT 44 (AAC), it was held that it is not dependent on entitlement to child benefit. The judge pointed out that the conditions of entitlement to child benefit do not necessarily depend on claimant and child living together. The judge also comments that the DWP’s own UC guidance regarding when a child ‘normally lives’ with a claimant itself notes ‘which person gets CHB [ie, child benefit] is not taken into account’.1
The DWP’s reason why confirmation of child benefit entitlement is being asked for is about verification. While entitlement to UC child elements is not linked to entitlement to child benefit, the DWP believes that child benefit will verify that the child normally lives with the claimantfor UC. This ignores the fact, as pointed out in MC, that child benefit may be awarded to a claimant who does not normally live with the child.
The DWP does suggest that child benefit entitlement is only one way to verify that the child normally lives with the claimant and that other evidence, such as birth or adoption certificates, the child’s passport or a letter from her/his GP or school, might be provided, but child benefit entitlement is given priority.2 In practice, however, it seems that child benefit entitlement is being made a condition of awarding the child elements and UC decision makers are ignoring the fact that other means of verification can be accepted.
Impact on claimants
Linking UC child elements to child benefit entitlement leads to delays while HM Revenue and Customs (HMRC) processes a claim. For some claimant groups, like those newly granted refugee status or European Economic Area nationals, HMRC can take up to six months to decide a child benefit claim. In the interim, claimants and their families are at best left in hardship.
UC child elements might be refused where someone else is the child benefit recipient. Where separated parents share care for their children, one claiming the child benefit and the other claiming UC child elements may be the legitimate financial arrangement agreed between them, as pointed out in MC. In such cases, the result of the DWP approach may be that no UC child elements are awarded at all in respect of the child(ren), or that the child benefit recipient has them paid to her/him in spite of her/his wishes.
Tactics and solutions
CPAG has pointed out the flaws in the DWP’s practice of using child benefit entitlement as a proxy for a child normally living with a claimant. But it seems it is unwilling to change practice at present. As such, other tactics and strategies are currently needed.
Where a child benefit application has been made by the UC claimant but not awarded yet by HMRC, claimants should offer other evidence that the child normally lives with them. The DWP’s guidance does suggest what other evidence might be accepted, but the list is not intended to be exhaustive. Other evidence might be Home Office documents (in the case of refugee claimants) or information related to previous claims held by DWP, HMRC or a local authority. The guidance suggests disability living allowance (DLA) award letters for the child as a form of evidence in relation to disabled child additions in UC, but receipt of DLA is as problematic as child benefit.
Where someone other than the claimant is the child benefit recipient, evidence of child care arrangements might be provided by that recipient or in the form of a court decision where it has been stipulated by the courts. Other evidence of actual living arrangements might also come from sources such as nurseries, schools, social workers or support agencies. Also where no ‘competing’ claim has been made for the UC child elements by the child benefit recipient, this may be good evidence of shared or even main responsibility. Cases where, despite the claimant giving accurate information, UC child elements are awarded to child benefit recipients who the child does not live with or who are not treated as responsible, are more problematic. Any successful challenge to the award is likely to result in an overpayment decision and all overpayments of UC are recoverable.3 Claimants (and their advisers) should be prepared to argue robustly that DWP decision makers use their discretion not to recover overpayments in such cases.
In all cases where UC child elements are delayed, refused or awarded in error, the matter can be raised with the DWP local partnership manager, complaints should be made and/or the issue raised with the local MP. In delay cases particularly, judicial review might be considered. Where there is a UC award but any child elements are not yet awarded, or are awarded to someone else, mandatory reconsideration and then appeal applications can be made against any such decision. All such cases can also be submitted to CPAG’s Early Warning System for our continuing policy work on UC.
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- 1. DWP, Advice for Decision Making, para F1060
- 2. See the full service guidance deposited in the House of Commons library, available at http://data.parliament.uk/DepositedPapers/Files/DEP2018-0759/Addl_amount... children_V4.0.pdf
- 3. This is a known problem in some local authority areas of Scotland where some kinship carers are entitled to child benefit but are treated as not responsible for the child for UC purposes, but it is not clear to CPAG how wide an issue it is in England or Wales given the differences in the legislation regarding looked-after children.